Sthapatya Shilp Developers, Ahmedabad V. ACIT, Central Circle-1(2), Ahmedabad

ITSSA 284/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9664 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 12-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIRENDARA OJHA
• Keywords: Tax effect
• Section: 201; 153C; 69; 132; 15; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD [THROUGH VIRTUAL COURT] BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER IT(SS)A.NO.283 AND 284/AHD/2018 / ASSTT.YEAR : 2011-12 AND 2013-14 STHAPATYA SHILP DEVELOPERS 203-204, ABHISHILP COMPLEX NR. VISHWESHAR MAHADEV TEMPLE VASTRAPUR, AHMEDABAD 380 015 PAN : ABBFS 3315 E VS. ACIT, CENT.CIR.1(2)(3) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : MS.NUPUR SHAH, AR REVENUE BY : SHRI VIRENDARA OJHA, CIT-DR / DATE OF HEARING : 26/07/2021 / DATE OF PRONOUNCEMENT: 29/07/2021 !'/ O R D E R PER RAJPAL YADAV, VICE-PRESIDENT PRESENT TWO APPEAL ARE DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINST ORDER OF THE LD.CIT(A)-11, AHMEDABAD OF EVE N DATED I.E. 7.8.2018 PASSED FOR THE ASSTT.YEARS 2011-12 AND 201 3-14. SINCE IN BOTH THE ASSESSMENT YEARS, ISSUES ARE COMMON, THERE FORE, FOR THE SAKE OF CONVENIENCE, WE DISPOSE OF BOTH THE APPEALS BY T HIS COMMON ORDER. 2. THE GROUNDS RAISED IN BOTH THE APPEALS OF THE AS SESSEE ARE COMMON AND IDENTICALLY WORDED. IN BRIEF, GRIEVANCE OF THE ASSESSEE IS THAT THE NOTICE ISSUED UNDER SECTION 153C OF THE IN COME TAX ACT, 1961 UPON THE ASSESSEE AND ASKING IT TO FILE RETURN OF I NCOME, WAS ILLEGAL AND IT(SS)A NO.283 AND 284/AHD/2018 2 WITHOUT JURISDICTION. THEREFORE, THE ASSESSMENT OR DER DESERVES TO BE QUASHED. 3. WE HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GO NE THROUGH THE RECORD CAREFULLY. AT THE OUTSET, IT IS BROUGHT TO OUR NOTICE THAT EXACTLY SIMILAR ISSUE HAS COME UP BEFORE THE TRIBUNAL IN TH E CASE OF DHARMEN MARBLE & STONE VS. ACIT, IN IT(SS)A.NO.285/AHD/2018 FOR THE ASSTT.YEAR 2011-12. THE TRIBUNAL VIDE ORDER DATED 1 1.6.2021 HELD THAT SINCE THE ADDITION ON WHICH NOTICE UNDER SECTION 15 3C OF THE ACT WAS ISSUED HAS BEEN DELETED BY THE LD.CIT(A) ON MERIT, ADJUDICATING THE ISSUE ON LEGALITY OF ISSUANCE OF NOTICE UNDER SECTI ON 153C MERELY ACADEMIC IN NATURE AND WASTE OF TIME, AND WOULD NOT CAUSE AND PREJUDICE TO EITHER PARTY. THEREFORE, THE PRESENT APPEALS ALSO WILL HAVE TO BE DISPOSED OF IN LINE WITH THE ABOVE CASE. THI S BEING SO, AND BOTH THE PARTIES HAVE NOT DISPUTED ABOUT DIFFERENCE IN F ACTUAL MATRIX IN BOTH THE APPEALS, WE PROCEED TO DISPOSE OF THEM CONCURRE NTLY WITH THE DECISION OF THE TRIBUNAL TAKEN IN CASES CITED (SUPR A). 4. FACTS IN VERY BRIEF ARE THAT THE ASSESSEE IS BUI LDER, DEVELOPER, SOCIETY AND SCHEME ORGANIZER. IT HAS FILED ITS ORI GINAL RETURN OF INCOME UNDER SECTION 139 DECLARING TOTAL INCOME AT RS.12,7 7,990/- AND RS.12,46,651/- FOR THE ASSESSMENT YEARS 2011-12 AND 2013-14 RESPECTIVELY. 2,01,640/-. A SEARCH UNDER SECTION 132 OF THE ACT WAS CONDUCTED IN THE GROUP CASES OF BARTER GROUP/ACCOMM ODATION ENTRY PROVIDER GROUP OF AHMEDABAD ON 4.12.2014. ACCORDIN G TO THE AO, DURING THE COURSE OF SEARCH CERTAIN INCRIMINATING M ATERIALS WERE FOUND AND SEIZED. ON PERUSAL OF THESE MATERIALS, IT INDI CATED THAT CERTAIN DETAILS WERE BELONGED TO THE ASSESSEE, AND THEREFOR E, A NOTICE UNDER SECTION 153C WAS REQUIRED TO BE SERVED UPON IT. AC CORDINGLY, A NOTICE UNDER SECTION 153C WAS ISSUED TO THE ASSESSEE ON 5. 9.2016. AFTER HEARING THE ASSESSEE, THE LD.AO HAS PASSED THE IMPU GNED ASSESSMENT ORDERS. HE DETERMINED TAXABLE INCOME AS UNDER: IT(SS)A NO.283 AND 284/AHD/2018 3 ASSTT.YEAR : 2011-12 6. AFTER EXAMINATION OF THE DETAILS, AND DISCUSSION HELD WITH THE AR OF THE ASSESSEE & AS IN PRECEDING PARAS OF T HIS ORDER AND SUBJECT TO THE DETAILS MADE AVAILABLE BY THE ASSESS EE, THE TOTAL INCOME OF THE ASSESSEE IS COMPUTED AS UNDER: INCOME FROM BUSINESS & PROFESSION (AS PER RETURN) RS.12,77,989/- UNEXPLAINED MONEY U/S.69 (AS IN PARA 5.2) RS.50,00,000/- TOTAL INCOME RS.62,77,989/- ASSESSED INCOME (ROUNDED OFF) RS.62,77,990/- ASSTT.YEAR : 2013-14 6. AFTER EXAMINATION OF THE DETAILS, AND DISCUSSION HELD WITH THE AR OF THE ASSESSEE & AS IN PRECEDING PARAS OF T HIS ORDER AND SUBJECT TO THE DETAILS MADE AVAILABLE BY THE ASSESS EE, THE TOTAL INCOME OF THE ASSESSEE IS COMPUTED AS UNDER: INCOME FROM BUSINESS & PROFESSION (AS PER RETURN) RS.12,46,651/- UNEXPLAINED MONEY U/S.69 (AS IN PARA 5.2) RS.28,00,000/- TOTAL INCOME RS.40,46,651/- ASSESSED INCOME (ROUNDED OFF) RS.40,46,651/- 5. ON APPEAL, THE LD.CIT(A) HAS DELETED BOTH THE AD DITIONS I.E. RS.50.00 LAKHS AND RS.28.00 LAKHS RESPECTIVELY FOR ABOVE TWO ASSESSMENT YEARS, WHICH WERE ADDED BY THE AO UNDER SECTION 69 OF THE ACT, BUT UPHELD ACTION OF THE AO IN ISSUING NOTICE UNDER SECTION 153C OF THE ACT. STILL DISSATISFIED FOR NOT QUASHING THE N OTICE UNDER SECTION 153C OF THE ACT, THE ASSESSEE IS IN FURTHER APPEAL BEFOR E THE TRIBUNAL. 6. BEFORE US, SUBMISSIONS OF BOTH THE PARTIES ARE S IMILAR, AS WERE MADE IN THE CASE OF DHARMEN MARBLE & STONE (SUPRA). FOR THE SAKE IT(SS)A NO.283 AND 284/AHD/2018 4 BREVITY, WE REPRODUCE ORDER OF THE TRIBUNAL DATED 1 1.6.2021 CONTAINING SUBMISSIONS OF THE PARTIES AND OBSERVATION OF THE T RIBUNAL. IT READS AS UNDER: 5. THE LD.CIT-DR AT THE OUTSET SUBMITTED THAT AGAI NST THE ORDER OF THE LD.CIT(A), NO APPEAL HAS BEEN PREFERRED BY THE REVENUE. MOREOVER, TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY THE CIT(A) IS LESS THAN THE MANDATORY LIMIT REQUIRED FOR CHALLENGING SUCH ORDER . THEREFORE, EVEN IF THE APPEAL IS BEING FILED BELATEDLY, THEN ALSO IT I S NOT MAINTAINABLE. THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE WITH REGARD TO JURISDICTION OF THE AO. NOW IN VIEW OF THE CIT(A)S ORDER ON MERIT, IT BECOMES AN ACADEMIC ONLY. ON THE OTHER HAND, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE WILL CROP UP IN THE CASE OF LARGE NUMBER OF ASSESSEES BECAUSE NOTICES UNDER SECTION 153C HAVE B EEN ISSUED ON NUMBER PERSONS. THEREFORE, IT IS NECESSARY TO RECO RD A FINDING ON THE LEGAL ISSUE. 6. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIRC UMSTANCES, WE ARE OF THE VIEW THAT ADDITION MADE BY THE AO HAS AL READY BEEN DELETED BY THE CIT(A) ON MERIT. THE ORDER OF THE CIT(A) HA S NOT BEEN CHALLENGED BY THE REVENUE IN FURTHER APPEAL. THERE FORE, ADJUDICATION OF LEGAL ISSUE AT THIS STAGE WOULD ONLY AN ACADEMIC EX ERCISE. IT IS NOT GOING TO MATERIALLY AFFECT THE ASSESSEE IN ANY MANN ER. NO OTHER PROCEEDINGS, IN CONSEQUENCE TO THIS PROCEEDING QUA THE ASSESSEE ARE PENDING. THEREFORE, WE DO NOT DEEM IT NECESSARY TO DEVOTE TIME ENERGY FOR RESOLVING AN ACADEMIC LITIGATION. TO OUR MIND, TO SOME EXTENT THIS APPEAL OF THE ASSESSEE HAS BECOME REDUNDANT. HOWEV ER, KEEPING IN VIEW EVERY ASPECT AND SAFEGUARDING THE ASSESSEE, WE OBSERVE THAT DISMISSAL OF THIS APPEAL WILL NOT CAUSE ANY PREJUDI CE TO OTHER ASSESSEE, WHO MAY CHALLENGE IDENTICAL NOTICE ON ACCOUNT OF SE ARCH CONDUCTED AT BARTER. IT WILL NOT AFFECT THE CASE OF THE AO QUA OTHER ASSESSEES. IN FUTURE, ON ACCOUNT OF SOME PROCEEDINGS FOR ADJUDICA TION ON THE VALIDITY OF THE NOTICE ARISES, THEN THE ASSESSEE WILL BE AT LIBERTY TO APPLY FOR RECALL OF THIS ORDER, AND MAY PRESS THIS GROUND OF APPEAL. WITH THE ABOVE OBSERVATION, THIS APPEAL IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. 7. IN THE LIGHT OF THE ABOVE ORDER OF THE TRIBUNAL, WE ARE OF THE VIEW THAT CONSIDERATION OF THE ISSUE ON HAND IS SUPERFLU OUS, BECAUSE NOTHING IS PLACED BEFORE US TO TAKE A DIFFERENT VIEW VIS-- VIS IN THE PRESENT TWO APPEALS. THEREFORE, FOLLOWING ORDER OF THE TRIBUNAL IN THE CASE CITED (SUPRA) (ONE OF US I.E. VICE-PRESIDENT WAS AUTHOR O F THAT ORDER), WE REJECT GROUND OF APPEALS BY ADOPTING SAME OBSERVATI ONS AS MADE IN THE IT(SS)A NO.283 AND 284/AHD/2018 5 CASES REPRODUCED ABOVE. APPEALS OF THE ASSESSEE ARE ACCORDINGLY DISPOSED OF. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 29 TH JULY, 2021 AT AHMEDABAD. SD/- (WASEEM AHMED) ACCOUNTANT MEMBER SD/- (RAJPAL YADAV) VICE-PRESIDENT